Tuesday, December 12, 2006

Judge Jones & the Dover Trial

When the Jones decision was first published I read every word. I was very impressed. Here was a man who seemed to have learned a lot of sophisticated science in a very short period of time. His grasp of complexities like the evolution of bacteria flagella and blood clotting was impressive. His understanding of the meaning of science rivaled that of many advisors on the ACLU side. Frankly, I was jealous, and humbled.

Kitzmiller v. Dover Area School District is a major victory for science and a major blow to those who have tried to sneak religion into the classroom by disguising in scientific garb. But it’s more than that. It is a brilliant, insightful, profound decision that reaches to the bottom of ID and finds it empty.

Judge John Jones, a George W. Bush appointee, deserves the praise and thanks of every defender of rigorous, meaningful scientific education. He has taken the time to really understand not just the legal issues, but the scientific ones as well. This decision proves he is a credit to the federal judiciary.

These comments, and others, seemed to confirm that Jones had written this decision all by himself and deserved full credit for his brilliant analysis.

Apparently Judge Jones copied the most "scientific" parts of his decision from the ACLU ‘Findings of Fact and Conclusions of Law’ that was submitted a month before the decision was published. I'm told that this is standard practice. Judges often rely heavily on written submissions from the side they support. I'm told that it's common for judges to copy from those submissions.

That may be true—I have no reason to doubt it—but it does make a difference to me. The legal significance of the decision doesn't change but my opinion of Judge Jones does. He is no longer the brilliant man who was able to grasp complex scientific concepts in the blink of an eye. He's able to discern who's right and who's wrong, but that's all.

Now, the question is, who really wrote the ACLU "Finding of Fact?" Did they know from the beginning that the Jones decision had incorporated a lot of their material? If so, why did they leave us with the impression that Judge Jones "has taken the time to really understand not just the legal issues, but the scientific ones as well?"

32 comments
:

What "complex scientific concepts" are you talking about, Larry? Astrology? Behe's redefinition of scientific theory? Purposeful arrangement of parts? The argument over whether Meyers' paper was published by stealth? Behe's ignorance of research in his own field?

The entire 139-page decision reads very well and is coherent from start to finish.

Finally, the DI is only whining about the 20 or so page section regarding "intelligent design." What about the other 119 pages?

Bill, my "quibble" is that I was led to believe that the brilliant, insightful, decision was written by Judge Jones. That impressed me since it covered some very complex issues.

Now I know that the section in question was actually written by someone else. Presumably, someone who was much more knowledgeable about these issues. That's all, that's my only "quibble." I was deceived into thinking that Jones was much smarter than he actually is.

If this had been a student essay, it would have received a failing grade for plagiarism. The standards in the legal profession are different. It's acceptable for Judge Jones to take credit for something that other people wrote.

There are some people who knew all along that Jones had copied the ACLU Findings. I'm a little diappointed that they didn't let on. Instead, they left it to the Discovery Institute to reveal the truth.

I don't really know what to say here. This is how the law works. If you weren't aware of that before today, that's hardly your fault, but it's not Judge Jones' or the ACLU's fault either.

This stuff happened all out in the open. If you'd been following the case at the time, the proposed findings of fact by both the plaintiffs and the defendents were posted publicly on the NSCE's website as soon as they were released, and you could have known about this stuff and read the proposed findings a good month or so before the decision. (Look, here's a Panda's Thumb article from the time.) They're still publicly available now, as it happens, so if you've got any questions about them, like who wrote them, you can just go read them yourself.

The only reason why you've never heard about any of this is that the popular media, where you apparently heard about all this from, simply doesn't have the attention span to report on little procedural details of court cases like proposed findings of facts and law (or even that "findings" exist, or that a judge releases anything but a "decision"). If this makes you feel "deceived", all I cen tell you is that you should start looking closer at the things you see reported on rather than taking the popular media at face value, and this kind of thing won't happen in future.

It's acceptable for Judge Jones to take credit for something that other people wrote.

It's not "acceptable", it's better. We don't want judges writing all the elaborate technical stuff. Some judges might be able to understand the issues at hand, and from following the case it's clear Judge Jones was one. However it's better when possible to have the actual final materials written by someone with, or even a group of people with, deep background knowledge. The findings of fact in a law case are legally "truth" and no matter how well they understood the issues at hand in the case, any judge ruling on scientific matters would be bound to make minor errors, errors which both would not be acceptable (you can't go back and just correct a judicial decision later with a red pen) and which in a worst case scenario might even result in a needless appeal. This is not what we want. This is not a judge's job.

There are some people who knew all along that Jones had copied the ACLU Findings. I'm a little diappointed that they didn't let on.

"Didn't let on"? Wait, what? No, you just weren't paying attention. There is literally no one to blame here, if anyone at all, but yourself.

I have no one to blame but myself for thinking that Jones had become an expert on the definition of science.

But he did become an expert on the definition of science. Few people have heard more arguments from all points of view and his decision shows that he is indeed an expert. By the way, in most bench trials, as this one was, most judges just adopt the submission (proposed findings of fact and conclusions of law) by the winning side. In this case, the judge wrote his own opinion.

The Discovery Institute is just playing on people's ignorance. Maybe someone will tell the AP that as they spread this release around the country. They could also ask why it took the Discovery Institute a whole year to figure it out.

'Thanks for posting the link "coin." I found the "Proposed Finding of Fact."

Oh, silly me. I didn't read it when it was first posted and I didn't go back and compare it to Judge Jone's decision when it was published a month later.

You are right. I have no one to blame but myself for thinking that Jones had become an expert on the definition of science. Those who let me keep on thinking that are completely blameless.'

Not only were the Proposed Findings from each side posted on the Court's website and linked from PT and NCSE, TalkOrigins.org posted the HTML of the Plaintiffs' Proposed Findings on December 8, 2005:http://www.talkorigins.org/faqs/dover/pf.html

So it's not like this was a secret. In fact, I explicitly bragged about it to Casey Luskin on an NPR show just after the decision came down:http://www.kqed.org/epArchive/R512220900

I was deceived into thinking that Jones was much smarter than he actually is.

How does that follow? Jones was smart enough to know that he's not an expert on science, so he should use the findings of fact from people who are. That doesn't mean he couldn't write his own, completely originally worded opinion on the scientific issues if he wanted to; it simply wasn't his job.

Now I certainly didn't know that it was customary to copy that much from the findings of fact, and I suspect a lot of the people who blogged on the decision didn't know either. But that shouldn't reflect on Jones at all.

Judge Jones distorted basic facts at the trial in his findings.He put words from the opposing counsel in Behe's mouth. As did many media outlets, especially on Behe's comments about astrology. Furthermore, he told a reporter that he watched "Inherit the Wind" to get himself in the right frame of mind for the trial. Some impartiality! Perhaps that was all the independent research he did, beside regurgitate ACLU briefs.

tomh,Playing on people's ignorance:Sounds like what educationalists do when they fill students' heads full of Haeckel's forged embryo drawings; wild speculations about horse ancestry which brings in modern species; fanciful and unproven notions like punctuated equilibrium.

Well, after a year, it's not surprising that one would forget what steviepinhead said within an hour of the initial PT posting when being queried about the purpose of "Proposed findings of fact":

.... After all the testimony and exhibits (admitted documents, slides, papers, etc.) are in and the cases being put on by the parties are closed, the legal teams for the two sides comb back over the evidence and each submit proposed findings of fact.

The judge can pick and choose from either or both documents, or ignore some or all of either or both, and the judge can also come up with his or her own findings, but at least the initial burden of working up and organizing the “facts” is placed on the parties who dragged the mess into the courthouse in the first place, and not on the poor overworked judge.

Check this out. A comparison of what the DI claims was copied, what the ACLU wrote and what Judge Jones wrote. This is only one example:

The DI Claim:... just because scientists cannot explain every evolutionary detail does not undermine its validity as a scientific theory as no theory in science is fully understood.

ACLU contribution:Just because scientists cannot explain every evolutionary detail does not undermine its validity as a scientific theory. No theory in science is fully understood.

What Judge Jones actually wrote:

To that end, expert testimony from Drs. Miller and Padian provided multiple examples where Pandas asserted that no natural explanations exist, and in some cases that none could exist, and yet natural explanations have been identified in the intervening years. It also bears mentioning that as Dr. Miller stated, just because scientists cannot explain every evolutionary detail does not undermine its validity as a scientific theory as no theory in science is fully understood. (3:102 (Miller)).

This, Larry, looks like a quote attributed to Miller and referenced. Where's the plagiarism?

>Furthermore, he told a reporter that he watched "Inherit the Wind" to get himself in the right frame of mind for the trial.<

False accusation. What Jones actually said was that he was thinking about watching it at some point in the future. The reporter then asked how watching it would help him make his decision. Jones answered just as I would have - it wouldn't help, other than perhaps from a historical standpoint. This is not an admission that he was planning on watching it before the decision was made. He was merely correcting the reporter's assumption that he could use it to help him make the decision. It should also be noted that after the trial was over, he stated that he had not prepared himself for the trial by using outside sources.

I'm a little puzzled by the comment that, since Jones adopted phrasing from the plaintiff's proposed findings, that Jones does not actually understand the science about which he wrote and upon which he based his decision.

Judge Jones is not a scientist. Even if he were, it would be inappropriate for him to substitute his pre-existing understanding for that presented by the evidence and testimony that came before the bench during trial.

If you look at the decision and the proposed findings, it is clear that Jones understood what the experts were saying and that he applied the concepts of science and law correctly to the facts.

What more do you want from him? Using the same criticism, I could assert that those who write science (literature) review articles "Don't really know what they are talking about" because the experiments they described were not their own. The criticism simply does not apply.

The DI piece is trying to put Jones nearly full adoption of findings a problem. It is a trash piece, trying to paint a rosy glimmer over DI's demise. Jones adoption is taken to mean he didn't do any work of his own and that he reprinted errors. But he actually took the effort to write an opinion. Which, according to tomh, doesn't seem routine.

The errors are of course fabricated in DI's report. It is the usual quotemining and misrepresentation of facts. One can have much fun with it.

Even their old errors on the biology of bacterial flagella is still there:

The decision."In addition to failing to produce papers in peer-reviewed journals, ID also features no scientific research or testing."

The answer."Microbiologist Scott Minnich testified in court showing slides of the genetic knock-out experiments he performed in his own laboratory at the University of Idaho which found that the bacterial flagellum is irreducibly complex with respect to its complement of 35 genes."

Totally in conflict with the latest research Matzke reviews on PT. And IIRC Minnich paper was also irreproducible because of the poor quality. Trying isn't enough to claim successful research.

In response to Pharyngulas thread a troll tried to avert the discussion. Here it is false accusations.

I mentioned one error to back that up. If you follow the PT link there is a thorough discussion on Behe's claim that there was still not sufficient evidence of evolution in the immune system in spite of 58 articles and sundry books. I could go on.

Larry retracts, sort of, with:You are right. I have no one to blame but myself for thinking that Jones had become an expert on the definition of science. Those who let me keep on thinking that are completely blameless.

It's not about "blame". It's about learning how law works. That aside, your first sentence is quite right. Your disappointment arises from a misunderstanding on your own part; not from deception or malice.

The second sentence reads like a sarcastic and petulant whine. Of course they are blameless; but I think you don't quite get that yet, given the curious way you've said it. The information was out there, but the particular misunderstanding was not highlighted as an issue, and those who were in a position to explain are NOT to blame at all for failing to track down all the misconceptions of non-experts.

I'm not an expert either. But this did not bother me particularly. I still think the Judge did a very good job in sorting out the issues; and in a technical subject where he is legally prohibited from basing judgment on his own learning, and required to use only arguments made and established in the court, with the opportunity for opposing counsel to refute, it is probably very sensible to use the proposed findings of fact as a basis -- having worked out what findings were actually the ones that made the case before the bench.

The ones that really impressed me for learning the complex issues were Rothschild and Harvey, the main lawyers for the plaintiffs. They were the guys who worked hard at getting an education in all the issues and had to think on their feet in cross examination of the so-called ID experts. They did a magnificent job -- but here again a lot of credit must go to the real experts behind the scenes who helped prepare them for trial.

The ones that really impressed me for learning the complex issues were Rothschild and Harvey, the main lawyers for the plaintiffs. They were the guys who worked hard at getting an education in all the issues and had to think on their feet in cross examination of the so-called ID experts. They did a magnificent job -- but here again a lot of credit must go to the real experts behind the scenes who helped prepare them for trial.

I agree. My error was in thinking that Judge Jones was also in this category. Several people who were close to the trial commented on the "brilliant" decision. I've seen lots of people praise the writing of Judge Jones and direct people to read the decision for an insightful view of the difference between science and religion.

I was one of those people who was impressed with the decision and marvelled at the ability of Judge Jones to see through complex issues even though he had no scientific training. When he was invited to give speeches after the trial I thought this was a credit to his writing skills.

Now I know different. The credit goes to the ACLU team and not to Judge Jones. I, for one, will not be referring others to this "brilliant" decision any more.

I'm told that it's standard practice for judges in America not to write their own decisions. Does this apply to all those famous Supreme Court decisions that we read about in the history books?

Does this practice also apply to the much-admired Overton decision in McLean v. Arkansas? Was that decision also written by clerks and cribbed from documents submitted by the plaintifs? If so, why does Overton get all the credit?

Larry, I think you are still overstating the case a bit. It still seems to me that Judge Jones did pick up on the issues well, as far as we can tell.

Note that the DI is exaggerating the amount of copying involved. It was not verbatim. The Judge did reword a bit, showing that he was not merely cut and pasting, but reviewing and considering what was said. He also did some selection and rearranging into sequence. He did not merely sign off on the plaintiff's proposed findings -- which he could have done, I gather.

The DI is now speaking of some concern in legal circles about this practice; but as far as I can tell it does not apply particularly strongly to this ruling. What is more contentious is simply signing off on one party's statement as given. That didn't happen; the Judge selected, rephrased slightly, added some references to where matters had been shown at trial, and incorporated it into a larger document. He requested proposed findings from both sides, and you can bet he considered them both carefully.

This would certainly still be plagiarism as a scientific paper; but as a legal ruling it is just a decision that it was the plaintiffs who showed the facts at trial.

The point is, I think, that the Judge is not trying to demonstrate how much he personally knows, or to explain the issues based on his own knowledge. He may well still be deserving of the high opinion you had last month. But his ruling was not to explain what he has learned; it was to judge between two parties and determine which of them had the facts right. Sometimes in a trial the truth is in between. Here it was a slam dunk. One side totally failed to make a case, the other side got it right all down the line. That's how I see it; and that's also how the judge ruled.

I think you are quite right not to make a big deal about how well the Judge learned about science. That's pretty irrelevant. But you can't presume he's clueless and just copying like a schoolboy either.

Focus on the decision itself, the staggering ineptitude of the cdesign proponentists -- ongoing as we have seen! -- and the plain facts of the case as shown so clearly at trial. This are still being disputed by the clueless.

Chris Ho-Stuart says,Note that the DI is exaggerating the amount of copying involved. It was not verbatim. The Judge did reword a bit, showing that he was not merely cut and pasting, but reviewing and considering what was said.

I think it's important that we know the facts. I didn't read what the IDiots are saying but I did look closely at the two documents myself.

There are large sections that are word-for-word identical. The main part of the review of scientific testimony is actually a cut-and-paste job with only small changes.

To me, these minor changes don't reveal a great deal of "reviewing and considering."

Here's an example from page 70 of the opinion. (The identical parts are boldface, from #55 and #56 in the Plaintiffs' brief.)

It is therefore readily apparent to the Court that ID fails to meet the essential ground rules that limit science to testable, natural explanations. (3:101-03 (Miller); 14:62 (Alters)). Science cannot be defined differently for Dover students than it is defined in the scientific community as an affirmative action program, as advocated by Professor Fuller, for a view that has been unable to gain a foothold within the scientific establishment.

Here's another example from page 72. The bold parts are contiguous in the Plaintiffs' brief (Point #61).

However, we believe that arguments against evolution are not arguments for design. Expert testimony revealed that just because scientists cannot explain today how biological systems evolved does not mean that they cannot, and will not, be able to explain them tomorrow. (2:36-37 (Miller)). As Dr. Padian aptly noted, [In Dr.Padian's words,] “absence of evidence is not evidence of absence.” (17:45 (Padian)). To that end, expert testimony from Drs. Miller and Padian provided multiple [was replete with] examples where Pandas asserted that no natural explanations exist, and in some cases that none could exist, and yet natural explanations have been identified in the intervening years.

Now pay attention people! I'm not saying that this is unethical or inappropriate. Enough lawyers have weighed in to convince me that this sort of thing is common practice in the legal profession, at least in America, and possibly everywhere.

I just want to make sure that everyone understands what we're talking about.

Laurence A. Moran

Larry Moran is a Professor in the Department of Biochemistry at the University of Toronto. You can contact him by looking up his email address on the University of Toronto website.

Sandwalk

The Sandwalk is the path behind the home of Charles Darwin where he used to walk every day, thinking about science. You can see the path in the woods in the upper left-hand corner of this image.

Disclaimer

Some readers of this blog may be under the impression that my personal opinions represent the official position of Canada, the Province of Ontario, the City of Toronto, the University of Toronto, the Faculty of Medicine, or the Department of Biochemistry. All of these institutions, plus every single one of my colleagues, students, friends, and relatives, want you to know that I do not speak for them. You should also know that they don't speak for me.

Subscribe to Sandwalk

Quotations

The old argument of design in nature, as given by Paley, which formerly seemed to me to be so conclusive, fails, now that the law of natural selection has been discovered. We can no longer argue that, for instance, the beautiful hinge of a bivalve shell must have been made by an intelligent being, like the hinge of a door by man. There seems to be no more design in the variability of organic beings and in the action of natural selection, than in the course which the wind blows.Charles Darwin (c1880)Although I am fully convinced of the truth of the views given in this volume, I by no means expect to convince experienced naturalists whose minds are stocked with a multitude of facts all viewed, during a long course of years, from a point of view directly opposite to mine. It is so easy to hide our ignorance under such expressions as "plan of creation," "unity of design," etc., and to think that we give an explanation when we only restate a fact. Any one whose disposition leads him to attach more weight to unexplained difficulties than to the explanation of a certain number of facts will certainly reject the theory.

Charles Darwin (1859)Science reveals where religion conceals. Where religion purports to explain, it actually resorts to tautology. To assert that "God did it" is no more than an admission of ignorance dressed deceitfully as an explanation...

Quotations

The world is not inhabited exclusively by fools, and when a subject arouses intense interest, as this one has, something other than semantics is usually at stake.
Stephen Jay Gould (1982)
I have championed contingency, and will continue to do so, because its large realm and legitimate claims have been so poorly attended by evolutionary scientists who cannot discern the beat of this different drummer while their brains and ears remain tuned to only the sounds of general theory.
Stephen Jay Gould (2002) p.1339
The essence of Darwinism lies in its claim that natural selection creates the fit. Variation is ubiquitous and random in direction. It supplies raw material only. Natural selection directs the course of evolutionary change.
Stephen Jay Gould (1977)
Rudyard Kipling asked how the leopard got its spots, the rhino its wrinkled skin. He called his answers "just-so stories." When evolutionists try to explain form and behavior, they also tell just-so stories—and the agent is natural selection. Virtuosity in invention replaces testability as the criterion for acceptance.
Stephen Jay Gould (1980)
Since 'change of gene frequencies in populations' is the 'official' definition of evolution, randomness has transgressed Darwin's border and asserted itself as an agent of evolutionary change.
Stephen Jay Gould (1983) p.335
The first commandment for all versions of NOMA might be summarized by stating: "Thou shalt not mix the magisteria by claiming that God directly ordains important events in the history of nature by special interference knowable only through revelation and not accessible to science." In common parlance, we refer to such special interference as "miracle"—operationally defined as a unique and temporary suspension of natural law to reorder the facts of nature by divine fiat.
Stephen Jay Gould (1999) p.84

Quotations

My own view is that conclusions about the evolution of human behavior should be based on research at least as rigorous as that used in studying nonhuman animals. And if you read the animal behavior journals, you'll see that this requirement sets the bar pretty high, so that many assertions about evolutionary psychology sink without a trace.

Jerry Coyne
Why Evolution Is TrueI once made the remark that two things disappeared in 1990: one was communism, the other was biochemistry and that only one of them should be allowed to come back.

Sydney Brenner
TIBS Dec. 2000
It is naïve to think that if a species' environment changes the species must adapt or else become extinct.... Just as a changed environment need not set in motion selection for new adaptations, new adaptations may evolve in an unchanging environment if new mutations arise that are superior to any pre-existing variations

Douglas Futuyma
One of the most frightening things in the Western world, and in this country in particular, is the number of people who believe in things that are scientifically false. If someone tells me that the earth is less than 10,000 years old, in my opinion he should see a psychiatrist.

Francis Crick
There will be no difficulty in computers being adapted to biology. There will be luddites. But they will be buried.

Sydney Brenner
An atheist before Darwin could have said, following Hume: 'I have no explanation for complex biological design. All I know is that God isn't a good explanation, so we must wait and hope that somebody comes up with a better one.' I can't help feeling that such a position, though logically sound, would have left one feeling pretty unsatisfied, and that although atheism might have been logically tenable before Darwin, Darwin made it possible to be an intellectually fulfilled atheist

Richard Dawkins
Another curious aspect of the theory of evolution is that everybody thinks he understand it. I mean philosophers, social scientists, and so on. While in fact very few people understand it, actually as it stands, even as it stood when Darwin expressed it, and even less as we now may be able to understand it in biology.

Jacques Monod
The false view of evolution as a process of global optimizing has been applied literally by engineers who, taken in by a mistaken metaphor, have attempted to find globally optimal solutions to design problems by writing programs that model evolution by natural selection.